Tuesday, November 22, 2011

The office ran across our first Sustaire case. The Korean family had exhausted their appellate proceedings, the Ninth Circuit panel had issued the Memorandum in their petition for review and the Mandate was set to issue today. The clients came in last week, asking if anything could be done in their case.

It started in 1991, when the husband, obtained his LPR status by using an immigration broker who took $10,000 and ostensibly filed an I-140 on his behalf as an EB-3 worker. He even went so far as to interview at the San Jose INS Office and received his Green Card. However, the broker was paying off the Supervisor of the Adjustment Section inside the INS office, Mr. Leland Sustaire.

As reported by the LA Times in 2003:

SAN JOSE — For 12 years, Leland Sustaire was the fix-it man, a veteran U.S. immigration supervisor who accepted $500,000 in bribes from two immigration brokers to authorize green cards for South Korean immigrants throughout California.

The scheme fell apart in 1998 when a nervous Sustaire turned himself in, agreeing to wear a hidden microphone to help indict Korean American brokers John Choe and Daniel Lee. Both were convicted of fraud and bribery in 1999 and sentenced to three years in prison. For Sustaire's cooperation, prosecutors argued that the 54-year-old former official should avoid time behind bars: He was sentenced to six months in a halfway house and six months' home confinement.

Even worse, when reviewing his testimony, Mr. Sustaire avoided any jail time for his fraud, he got to keep all of the illicit money he collected over the years, somewhere in the range of $500,000 to $650,000, and he got a free pass on having to pay any taxes to the IRS on this loot. However, the lives of the approximately 270 families he ruined did not get such a sweet deal.

The family we saw last week had been represented by a well-known San Francisco lawyer who arguably botched the case. At the hearing on the merits, he asked for a INA § 212(k) waiver, to which the Koreans were not even eligible to obtain, instead of asking for an INA § 237(a)(1)(H) waiver, which would have forgiven the fraudulent method in which the Green Card was obtained and grandfathered the green card back to the adjustment date. Then, compounding this error, the attorney missed the filing deadline for the Opening Brief at the Board of Immigration Appeals, the BIA never considered the brief, yet he gave the clients a copy of the brief, with the late time stamp from the BIA and led them to believe it had been filed on time.

Needless to say, we filed a motion to reopen with the BIA on the basis of ineffective assistance of counsel. We are keeping out fingers crossed on this one as the Board is always loath to reopen such an old case.